In December 1996, an attorney was appointed for mother. A January 1997,
SOSCF administrative review revealed that mother had contacted the CRB in late 1996,
expressing her wishes to be considered a resource for the children. An SOSCF worker
instructed mother that she needed to be reintegrated into the childrens' lives slowly and
told her to mail cards or letters to SOSCF. This administrative review showed that
SOSCF's plans were focused on reintegrating the children with their father. In February
1997, a SOSCF worker sent mother a brochure describing SOSCF services.

A March 1997 CRB finding indicated that father was making no progress
toward being reunited with the children and recommended that SOSCF work toward
adoption of the children if father did not immediately respond to offered services. This
report also noted that mother had made several contacts seeking visitation but that she
had not sent the children letters through SOSCF as instructed by the caseworker. The
report did not mention the possibility of mother as a placement resource for the children.

In May 1997, a review hearing was held, at which mother appeared and
was represented by court-appointed counsel. Mother, who lived across the state in
Douglas County, hitchhiked to the hearing. Mother requested travel money from SOSCF
during this visit, but her request was refused, apparently on the ground that mother had
not made the request for travel money earlier. The court continued the wardship of the
children, ordered supervised visitation for mother, and ordered SOSCF to conduct a
home study of mother's home. Mother had a visitation with her daughter Christina in
May 1997, but her other daughter was unavailable during that visit.

Further CRB findings and administrative review materials indicate that,
although mother mailed postcards for the children as required by the SOSCF caseworker,
SOSCF was not actively trying to facilitate visitation between mother and the children,
apparently because the children did not wish to meet their mother at that point.

Also in 1997, a Morrow County SOSCF worker, Smith, contacted Douglas
County SOSCF requesting that a home study be carried out as ordered by the court. A
Douglas County SOSCF worker, Newman, visited mother's home, where she lived with
her mother and her mother's boyfriend. Newman reported that the home was modest but
neat and comfortable and had adequate living space for the children. Newman further
noted that mother canceled several follow-up appointments because she had to go to the
dentist and that he tried twice to call her to reschedule but was unable to reach her.
Although Newman saw no problems in the home itself, he indicated in his report (and
later in testimony at trial) that other workers in his office told him that mother's brother
had sexually abused a child. He indicated that, although he knew that the brother did not
live at the residence, he believed that mother should move out of Douglas County and
establish a relationship with her children elsewhere. Neither he nor Smith communicated
that conclusion to mother. Smith was aware that mother was taking care of her own
mother, who had suffered from a stroke, and that she lacked the financial resources to
move across the state to be nearer the location where SOSCF had placed her children. In
a July 1997 telephone conference with Smith, Newman recommended a psychological
evaluation of mother, but Smith testified at trial that she did not wish to obtain a
psychological evaluation or offer services until she had more information about mother.

Later in 1997, mother made plans to travel across the state to visit the
children, but the plans fell through due to her lack of transportation and funds. Smith left
several messages for mother, asking mother to call her collect, but mother did not call. In
December 1997, SOSCF notified mother of its intention to seek termination of her
parental rights. When the decision was made to seek termination of parental rights, the
case was transferred to another SOSCF worker whose only contact with mother was to
leave a telephone message offering visitation and to mail termination plan updates to
mother. Mother visited the children in October 1998.

The termination proceeding was held in December 1998. At the beginning
of the proceeding, the attorney who had been appointed several months earlier to
represent mother informed the court that he had never met or spoken with mother and
apparently was taken by surprise when mother appeared for trial. He indicated that his
office had sent mother a notice informing her that she needed to schedule an office
appointment but she had not done so. He indicated that he had come to court only to
seek permission to withdraw from the case and that he had not had time to prepare for a
trial. He stated that he had received discovery of the 800-page SOSCF file only two days
earlier (as had the CASA appointed to represent the children), had not had time to talk to
his client, and had no idea whether she wanted to call any witnesses. He further
indicated that, based on his brief conversation with mother before the trial, it appeared
that mother had not understood that the proceeding was to be a trial and that she thought
the proceeding was to appoint an attorney to represent her. The attorney moved to
withdraw from the case. Mother also asked that the attorney be allowed to withdraw
from the case. The attorney moved, in the alternative, for a continuance so he could
prepare for trial. The trial court denied the motions but allowed a 10-minute break for
the attorney to prepare to try the case.

At trial, the state put on the evidence described above concerning its
efforts, such as they were, to work with mother. Evidence indicated that no adoptive
placement had been arranged for the children, although they were the "second choice" of
a couple that wished to adopt a different child.

Mother testified on her own behalf. She indicated that she had been unable
to maintain regular visitation with the children due to lack of money and transportation.
She testified that she had tried to hitchhike across the state on several occasions to see the
children, but had not made it very far. She indicated that her driver's license had been
suspended due to lack of insurance and that she had no job or funds. She testified that
her brother, who had been convicted of sexual abuse, did not live at the residence she
shared with her mother and that he did not visit the residence. Tiffany, the older of
mother's two children, testified that she did not wish her mother's parental rights to be
terminated.

The court terminated mother's parental rights to both children on numerous
grounds of unfitness and neglect. The court specifically found that mother had failed "to
effect a lasting adjustment after reasonable efforts by available social agencies for such
extended duration of time that it appears reasonable that no lasting adjustment can be
effected."

On appeal, mother argues that the trial court abused its discretion in
denying her motion for continuance on the day of trial given her attorney's
unpreparedness and further argues that her attorney's performance was inadequate, and,
as a consequence, the termination proceeding was not "fundamentally fair." The CASA
appointed to represent mother's oldest daughter Tiffany also asserts on appeal that the
court abused its discretion in refusing mother's request for a continuance and that the
termination proceeding was unfair. We do not address mother's and daughter's first
argument because we agree with the second argument, as explained below.

The termination of the rights of a parent is "one of the most drastic actions
the state can take against its inhabitants." State ex rel Juv. Dept. v. Geist, 310 Or 176,
186, 796 P2d 1193 (1990). It is also the type of proceeding where the need for finality
dictates that procedures used, including appeal, be carried out expeditiously. Id. at 186-87. Because of the importance of expeditious resolution of such proceedings, a parent
may challenge the adequacy of court-appointed counsel in the course of a direct appeal
from a termination on parental rights. Id.

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution requires that the proceedings to terminate parental rights be "fundamentally
fair." Geist, 310 Or at 189 (citing cases). The Supreme Court stated:

In terms of adequacy of counsel, fundamental fairness does not require any particular
theory of the case, and tactical choices by counsel generally will not constitute
inadequate assistance. Id. at 190.

A parent claiming inadequate assistance of counsel in a termination
proceeding has the burden of establishing that the proceeding was fundamentally unfair
and that counsel's "inadequacy prejudiced her cause to the extent that she was denied a
fair trial and, therefore, that the justice of the circuit court's decision is called into serious
question." Id. at 191. We believe that mother has met that burden here.

Mother's trial counsel candidly admitted that he did not prepare to conduct
a trial. The state places the "blame" for counsel's lack of preparation squarely on mother,
noting that she did not respond to counsel's notification that she should schedule an
appointment at his office on the other side of the state. We do not agree that counsel's
inadequacy was due solely to mother's conduct. When mother's counsel informed the
court that he had not received the SOSCF file until two days before the trial, the state
indicated that discovery had been available on request earlier, but no request had been
forthcoming. Mother's counsel indicated that he had sent a form letter requesting some
discovery materials, and had received some, but that he was unaware of the existence of
the 800-page file that he received two days before trial.

Had counsel sought and received the file in time to conduct even a minimal
review of the material contained therein, he would have been able to discern that the vast
majority of it concerned SOSCF's efforts to reunite the children with their father and that
the file was almost entirely devoid of any evidence that SOSCF had offered services to
mother to assist her in making adjustments that would allow the integration of the
children into her home. In fact, the contents of the file make it clear that no such goal
was ever envisioned by any of the SOSCF workers involved in the case. Although a
partially completed home study ordered by the court was included in the file, there was
no psychological evaluation of mother, no record of her ever being offered any parenting
classes, no record of SOSCF attempting to assist her in overcoming the financial and
transportation barriers that prevented her from traveling across the state to see the
children, and no record that SOSCF considered placing the children in foster care in a
location more conducive to mother establishing a relationship with them. In short,
counsel's failure to review the record and to prepare for trial on the termination of
mother's parental rights was inadequate to satisfy the "fundamental fairness" standard
enunciated by the court in Geist.

The state argues that, even if mother's counsel was inadequate, mother has
nonetheless failed to demonstrate that she is entitled to a reversal and remand. In Geist,
the court noted that a finding of inadequacy does not end the appellate court's inquiry;
the court must determine whether, even with adequate counsel, the result inevitably
would have been the same. Geist, 310 Or at 191. The state contends that the result in the
present case was inevitable, arguing that there is no indication that a psychological
evaluation would have assisted mother's case, no indication that mother would be any
more able to parent these children than she was able to parent her other child who was
the subject of the Washington State termination, and no indication that she would have
taken advantage of any services had they been offered by SOSCF. We disagree.